PER SHRI. S. G. CHABUKSWAR – HON’BLE  MEMBER

1)        The Complainant by this complaint prayed for the relief of refund of Rs.17,100/-, Rs.1,00,000/- as compensation for mental torture and Rs.10,000/- cost of the complaint.

2)        The following facts are not in dispute –

The Complainant Prakash Tiwari is the Proprietor of Tiwari Tutorials and its office is situated at Prabhadevi, Mumbai – 400 025.  The Complainant had purchased Epson Aculaser Printer CX 17NF (C11CB71061) from Opposite Party No.2 by Invoice No.EIPL/1213/00314 on 21/04/2012. The said printer had started malfunctioning, therefore, Complainant had registered complaint on toll free no.186030001600 on 13/10/2012.  On 17/10/2012 a technician from M/s. MSP03 Brisk Office Automation visited the Complainant’s house and stated that printer is beyond repairs at home and it is to be taken at their service center, Kala Chowki and it would be delivered to the Complainant within 3 to 4 days.  On 20/10/2012 said service center collected the printer in question from the Complainant for repairs.  The service center on phone informed to the Complainant that printer is beyond repair and refund of the amount paid by the Complainant will be made to him by Opposite Party No.2 from where the printer was purchased. 

3)        The case of the Complainant is that after collecting the printer in question by the service center from the Complainant there was no response from either Opposite Party No.1 or their authorized service center for about 15 days. The Complainant had visited the office of Opposite Party No.2 and met Mr. Manan Sayed, Sales Executive who directed the Complainant for taking up the matter directly with Opposite Party No.1.  At that time Mr. Kiran Pawar, Office Boy of Opposite Party No.2 abused the Complainant by saying beggar and criminal.  Mr. Sanjeev Patel, Director of Opposite Party No.2 came out of his cabin and endorsed the view of Mr. Kiran Pawar.  When Complainant came out of the office of Opposite Party No.2, one Mr. Sandeep Satpute of Opposite Party No.1 called him and assured that, he will look into the matter. 

4)        The further case of the Complainant is that, there was no communication from either Opposite Party No.1 or Opposite Party No.2 for twenty days therefore, on 06/12/2012 the Complainant made enquiry with Laxmi Tendulkar of Opposite Party No.1 but she very rudely told him that he can do whatever he wish to.  The Complainant had issued notice to the Opposite Parties.  Opposite Party No.1 only replied the said notice and show readiness for re-payment of cost of printer after production of original invoice.  The Complainant is a teacher and had great respect to the people. The Complainant had suffered great mental torture due to the delay in the repair of printer and due to non supply of study notes to his students.  The Complainant through his advocate issued notices dtd.07/12/2012 & 19/12/2012 to the Opposite Parties and asked for written apology from Mr. Kiran Pawar and Mrs. Laxmi Tendulkar, but in vain.  Hence, this complaint for the reliefs as mentioned in above para no.1.

5)        Opposite Party No.1 resisted the claim by filing written statement on 10/12/2013. The contention of Opposite Party No.1 is that, on 06/12/2012 the Complainant had called Opposite Party No.1 and that call was attended by Mrs. Laxmi Tendulkar, Executive of Opposite Party No.1 who was unaware of the case.  The Complainant had started talking roughly and badly to Mrs. Laxmi Tendulkar and states that, he will take legal action against Opposite Party No.1 and also against her.  In the said situation Mrs. Laxmi Tendulkar informed the Complainant that he can do whatever he want, according to Opposite Party No.1, this does not amount of misbehavior for which she should apologize in writing. On the contrary the Complainant has to apologize to her for his misbehavior. 

6)        The further contention of Opposite Party No.1 is that they have replied the notice of the Complainant dtd.07/12/2012 and informed to the Complainant that Opposite Party No.1 is ready for refund of price amount of printer to the Complainant on submission of original invoice but Complainant has not complied it and therefore, there was no question of waiting for the repair of printer in question.  Opposite Party No.1 has not committed any misconduct or misbehavior and there is no mistake on their behalf therefore, the question of payment of compensation to the Complainant does not arise for the mental torture.  The Complainant paid price amount Rs.16,286/- of printer in question therefore, Opposite Party No.1 was and is ready to refund the amount to the Complainant only Rs.16,286/- and not more than that.  The cause of action for filing complaint never arose as Opposite Party No.1 was ready to pay price amount of printer in question to the Complainant. Opposite Party No.1 has denied all rival contention of the Complainant and prayed for dismissal of the complaint.

7)        Opposite Party No.2 duly served with the notice of this complaint but remained absent hence, complaint proceeded ex-parte against Opposite Party No.2.

8)        The Complainant has submitted documents alongwith the complaint vide Exh.A to D. The Complainant has submitted affidavit of his evidence alongwith the complaint.  The Complainant has filed his written notes of argument on 25/03/2014 and Opposite Party No.1 on 10/06/2014. We heard Shri. Mahendra P. Singh, Ld.Advocate for the Complainant and Smt. Shital Dumralia, Ld.Advocate for the Opposite Party No.1.

9)        The evidence of the Complainant shows that he had purchased printer in question question from Opposite Party No.2 on 21/04/2012. The said printer started malfunctioning therefore, Complainant had registered his complaint on toll free number on 13/10/2012.  On 17/10/2012 the technician of Brisk Office visited the house of the Complainant and informed that printer is beyond repair at home.  On 20/10/2012, the printer was collected from the Complainant for repairs at service center.  15 days thereafter the Complainant contacted to the service center on phone. On that day the service center informed to the Complainant that printer is beyond repair and refund will be made to the Complainant from Opposite Party No.2.  Thereafter, Complainant approached to Mr. Manan Sayed, Sales Executives of Opposite Party No.2 who told him that he should directly take the matter with Opposite Party No.1.  On 06/12/2012 the Complainant made enquiry of his matter with the office of the Opposite Party No.1.  Thereafter on 07/12/2012 the Complainant through his advocate issued notices to the Opposite Party Nos. 1 & 2. The Complainant at the first time made demand in writing of price amount of the printer in question from Opposite Party No.1 on 07/12/2012.  On 12/12/2012 Opposite Party No.1 replied the above notice of Complainant and shown it’s readiness for refund of amount to the Complainant paid by him on production of original invoice. The Complainant has not sent original invoice to Opposite Party No.1 for taking refund of the amount.  From the above evidence it cannot be said that there is delay or deficiency in service on the part of Opposite Party No.1.  Opposite Party No.1 was and is ready for refund of price amount of printer in question to the Complainant therefore, it is necessary to make payment of said amount to the Complainant. 

10)      On 06/12/2012 Mrs. Laxmi Tendulkar, Executive of Opposite Party No.1 on phone said to the Complainant that he can do whatever he wishes to.  The contention of Opposite Party No.1 is that Mrs. Laxmi Tendulkar had attended the call of the Complainant who was unaware of the case and the Complainant started talking roughly and badly to her that he will take legal action against Opposite Party No.1 and also against her in that situation Mrs. Laxmi Tendulkar informed to the Complainant that he can do whatever he wants.  The Complainant himself has admitted in para no.11 of the complaint that Mrs. Laxmi Tendulkar told him that, she is unaware of the case.  Thereafter, the Complainant said to Mrs. Laxmi Tendulkar that a legal action would be taken against Opposite Party No.1.  From the above fact it appears after the above talk of the Complainant, Mrs. Laxmi Tendulkar told him that he can do whatever he want.  In view of this it can not be said that the mental torture caused to the Complainant on the part of Opposite Party No.1 or from Mrs. Laxmi Tendulkar.

11)      The Complainant has not made specific prayer in the complaint regarding refund of price amount of the printer in question.  However, he made said demand in the notices dtd.07/12/2012 and 19/12/2012 and asked for refund of Rs.17,100/- towards price of the printer in question.  The Complainant has mentioned in the complaint the date and invoice number of purchase of said printer but did not disclose its price.  He has not produced the invoice on record.  Opposite Party No.1 comes with the case that Complainant has paid price of the printer in question only Rs.16,286/-. Under these circumstances the invoice or pleading of the complaint regarding price of printer in question was necessary. In the absence of such evidence or pleading we cannot rely on the contents of notices dtd.07/12/2012 & 19/12/2012 regarding amount of price of printer in question.  From our above discussion we hold that Complainant is entitled to the refund of price of printer in question only Rs.16,286/- and he is not entitled to the compensation for mental torture and cost of the complaint from Opposite Party No.1 as there was no deficiency of service or mental torture to the Complainant on the part of Opposite Party No.1.

12)      The evidence of the Complainant clearly shows that after 15 days from 20/10/2012 i.e. in the month of November, 2012 he visited Mr. Manan Sayed, Sale Executive of Opposite Party No.2. On that day Mr. Manan Sayed informed to the Complainant that the responsibility of Opposite Party No.2 is only limited to supply of goods and are not responsible for any service matter arising thereafter and directed the Complainant to take up the matter directly with Opposite Party No.1.  The pleading and evidence of the Complainant as mentioned above remained unchallenged. Not only this but Opposite Party No.2 has not replied and denied the contentions of notice of the Complainant dtd.07/12/2012. Under these circumstances we have to rely on above evidence of the Complainant.

13)      As per the pleading of para no.1 of complaint the Complainant had purchased printer in question from Opposite Party No.2 on 21/04/2012 vide their invoice No.EIPL/1213/00314. Opposite Party No.1 has admitted above para No.1 of complaint in the written statement.  The evidence of the Complainant and pleading of Opposite Party No.1 shows that the work of supply of goods/printers was not only allotted to Opposite Party No.2.  From the evidence on record it appears Opposite Party No.2 was doing the work sale of goods/printers by accepting the price amount from the customers and issuing receipts/invoices to them. It also shows that Complainant had purchased printer in question from Opposite Party No.2 by paying it’s price amount and Opposite Party No.2 issued him invoice No.EIPL/1213/00314 on 21/04/2012.  As the above evidence and pleading of the Complainant remained unchallenged it cannot be said that the responsibility of Opposite Party No.2 was limited only to supply of printer in question to the Complainant as stated by Mr. Manan Sayed.

14)      On 21/04/2012 the Complainant had purchased printer in question from Opposite Party No.2.  On that day and time it was the duty of Opposite Party No.2 to disclose to the Complainant that Complainant shall make direct contract with Opposite Party No.1 if any defect or malfunctioning noticed to the Complainant in printer in question.  It has not come on record that on 21/04/2012 Opposite Party No.2 had disclosed to the Complainant the terms and conditions of sale & purchase of printer in question.  It has also not come on record that the said terms & conditions were printed on the invoice issued to the Complainant.  It appears Mr. Manan Sayed at very late stage disclosed to the Complainant that Opposite Party No.2 is not responsible for service of printer in question and Complainant should directly put his grievances with Opposite Party No.1, when the Complainant was facing problem of malfunctioning of printer.  The Complainant faced the said problem for 1½ month i.e. from 20/10/2012 i.e. when the printer was collected by the service center for repair from the Complainant till the receipt of notice reply of Opposite Party No.1 i.e.12/12/2012. If on 21/04/2012, Opposite Party No.2 would have disclosed to the Complainant the terms and conditions of contract of sale and purchase of printer in question then Complainantwould have not caused any mental torture or there would have not been any harassment to him.  In view of this we hold that there is deficiency in service on the part of Opposite Party No.2 regarding non-disclosure of terms and condition of contract on 21/04/2012 and due to which Complainant caused mental harassment and hence, he approached this Forum by this complaint. We therefore, hold that only Opposite Party No.2 is liable to pay to the Complainant Rs.10,000/- towards compensation of mental harassment caused to him and cost of complaint Rs.3,000/-.

            In the result complaint deserves to be partly allowed in the following terms.  Hence, we proceed to pass following order –

O R D E R

                     i.        Complaint No.44/2013 is partly allowed with cost against Opposite Party as under -

             ii.        Opposite Party No.1 is directed to pay to the Complainant Rs.16,286/- (Rs. Sixteen Thousand Two Hundred Eighty Six Only)

                        towards refund of printer price within 45 days from the service of this order.  In the failure Opposite Party No.1 would be liable to

                        pay interest on the above amount @ 9% p.a. from such date till realization of the amount.

iii.       Opposite Party No.2 is directed to pay to the Complainant Rs.10,000/-(Rs.Ten Thousand Only) towards compensation of mental

          harassment caused to him and Rs.3,000/-(Rs.Three Thousand Only) cost of complaint within 45 days from service of this order.  

         In the failure Opposite Party No.2 would be liable to pay interest on above said two amounts @ 9% p.a. from such date till

         realization of the amount.

iv.     The complaint as regards to compensation for mental harassment and cost of complaint against Opposite Party No.1 is rejected.

                     v.      Certified copies of this order be furnished to the parties.